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A. Pre-Citation Consultation.
1. General. In order to ensure uniformity,
consistency, and the legal adequacy of a limited category of citation
items, there shall be appropriate consultation between CO/IHs, and the
MOSH Supervisors. In some cases, the Assistant Commissioner/Authorized
Representative and the Office of the Attorney General may be consulted.
2. Procedures. In accordance with agency procedures,
consultation shall occur when the citation items could involve important,
novel or complex litigation in which the Assistant Commissioner/Authorized
Representative would expect the investment of major litigation resources.
a. Categories of cases where consultation shall occur are
as follows:
(1) All willful violations;
(2) Certain general duty clause citations in
accordance with the instructions given in Chapter IV,
especially those presenting novel or complex questions of
law;
(3) Cases arising under newly promulgated safety and health
standards;
(4) Cases of significant public concern such as
catastrophes and fatalities;
(5) Cases which are likely to become major
litigation vehicles in the development of MOSH law;
(6) Categories of cases designated by the
Assistant Commissioner/Authorized Representative as being
appropriate for pre-citation consultation for reasons of
litigation strategy or the elimination of unnecessary
duplication of effort;
(7) In addition, the MOSH
Supervisor may request appropriate consultation
with the Assistant Commissioner/Authorized Representative in
other cases not listed in the above categories.
b. Pre-citation consultation shall be conducted at the
earliest stage possible of a MOSH investigation in order to assist in
developing an investigation strategy, particularly in cases involving
fatalities, catastrophes and cases of significant public concern.
c. If a case involves some citation items which warrant
pre-citation consultation and others which do not, the Assistant
Commissioner/Authorized Representative may issue the routine citation
items promptly and delay the issuance only of those items which require
pre-citation consultation.
d. Where requested as a result of pre-citation
consultation, the MOSH Supervisor will
undertake additional investigation, which may involve obtaining
information concerning expert assistance.
e. Nothing in the above procedures shall affect MOSH's
responsibility and final authority to issue citations.
B. Writing Citations.
1. General. Section 5-212 of the MOSH Act (the Act)
authorizes the issuance of citations.
a. Section 5-212(a)(1). "...the Commissioner or
authorized representative shall issue a citation to the employer with reasonable promptness…." The time which has elapsed
from the completion of the inspection or investigation until the issuance
of citation(s) shall be closely monitored and kept as short as possible by
the Assistant Commissioner/Authorized Representative. No citation may be
issued after 6 months after the occurrence of a violation. Accordingly,
under no circumstances shall a citation be issued where any violation
alleged therein last occurred six months or more prior to the date on
which the citation is actually signed and dated. Where the actions or
omissions of the employer concealed the existence of the violation, the
time limitation is suspended until such time that MOSH learns or could
have learned of the violation. The Office of the Attorney General shall be
consulted.
2. Specific Instructions. The proper writing of
citations is an essential part of the enforcement process. Specific
instructions on how to complete the Citation and Notification of Penalty,
OSHA-2 Form, are contained in the MOSH
Forms Manual.
a. Standards and Regulations. After identifying a
hazardous condition, the CO/IH shall review existing standards and
regulations to ensure that the hazardous condition noted is covered within
the scope and application of the standard.
b. Standard Alleged Violation Elements (SAVEs). SAVEs
are incorporated into a database within the PC CSHO Application that is used in conjunction with automated citation processing
procedures.
(1) Purpose. The SAVEs are designed to achieve the
following goals:
(a)
Improve the quality of alleged
violation descriptions;
(b)
Establish uniformity through
standardized wording in Alleged Violation Descriptions (AVDs);
(c)
Promote uniform interpretation and
application of standards;
(d)
Ensure legal adequacy of alleged
violation descriptions;
(e)
Decrease lag time between inspection
and citation;
(f)
Reduce CO/IH and clerical time on
case file preparation;
(g)
Reduce typographical and grammatical
errors in citations.
(2) Scope. The term SAVE is used to
describe that portion of an alleged violation description
which can be stored within an automatic typing system and
retrieved as needed. As it appears in the citation, an AVD
is a complete description of an alleged violation consisting
of a SAVE and other necessary variable elements applicable
to a specific violation.
(a)
The SAVEs database
does not include variable information. It lists
the needed items of variable information in
memory-jogger form under the SAVE.
(b)
If the inspection is a fatality/
catastrophe investigation or other
"after-the-fact" investigation, the AVD must
include the date of employee exposure.
(c)
For multi-step abatements, the
variable information must include a description of each
step together with the date by which that step must be
completed. These will appear on the OSHA-2.
NOTE: SAVEs are not to be used as a
substitute for the Standards/Regulations.
(3) General Instructions. CO/IHs using SAVEs shall:
(a)
Determine from the MOSH Safety and
Health Standards/Regulations which specific
standard/regulation is to be cited.
(b)
Search the SAVE's database for a
corresponding SAVE. If one is listed, ensure that it is
appropriate for the apparent violation noted. This is
accomplished by comparing the SAVE with the
standard/regulation.
(c)
Record the variable information
required to complete the AVD. Include the date that the
violation was observed. If the violation was not
observed and the specific date cannot be determined the
CO/IH shall use the statement "On or about"
and attempt to pinpoint the violation to a specified
time frame.
(4) SAVE Options. A SAVE option
identifies different requirements within a single
standard/regulation.
(a)
If more than one requirement is
covered by a single standard/regulation, these may be
listed as options in the SAVE database. Two or more
options for the same standard/regulation shall not
be listed on a citation as separate violations.
(b)
SAVEs have not been drafted for all
possible combinations of violations of a standard.
Therefore the CO/IH shall write a new SAVE including all
the required information (options).
(5) Violations Without SAVE. If there is
not a SAVE that covers the alleged violation, the CO/IH is
required to develop the alleged violation description using
the following format:
(a)
Past tense in all wording.
(b)
Plural wording (e.g., operators).
(c)
Use of (a), (b), (c), etc., for sublocations.
(d)
Positive factual statements
(eliminate "failed to" and "employer
failed to").
(6) Examples. The following are some
examples of how SAVEs are properly used:
(a)
SAVE for 1910.213(n)(3).
1 As It Appears in the SAVEs
database. 29 CFR 1910.213(n)(3): Hoods or suitable
guards were not provided to prevent the hands of the
operators from coming in contact with the in-running
rolls of feed rolls on ________________:
NOTE: Indicate whether planing, molding, sticking, and/or matching
machines are to be cited.
2 What the CO/IH Must
Specify.
a Illustration 1.
o Insert appropriate machine
identification in body of SAVE: "Planing
Machine".
o Enter appropriate variable
information:
Date of Violation: 12/29/83
Location: Shop A, Northwest
Corner
Equipment: Apex Planing
Machine, Serial #36321
b Illustration 2.
o Insert appropriate machine
identification in body of SAVE: "Molding
Machine"
o Enter appropriate variable
information:
Date of Violation: 12/28/93
Location: Shop B, South Wall
Equipment: Baylor Molding
Machine, Serial #36545
c Illustration 3.
o If a combination of the
same types of hazards on different machines
covered by the same standard is noted during an
inspection, insert appropriate machine
identifications in body of SAVE: "Planing
Machine" and "Molding Machine":
o Enter appropriate variable
information:
Date of Violation: 12/29/83
Location: Shop A Northwest
Corner
Equipment: Planing Machine,
Serial #36321
Date of Violation: 12/29/83
Location: Shop B, South Wall
Equipment: Baylor Molding
Machine, Serial #63546
3 Completed AVD (For
Illustration 3) As It Appears on the Citation. 29
CFR 1910.213(n)(3): Hoods or suitable guards were not
provided to prevent the hands of the operators from
coming in contact with the in-running rolls of feed
rolls on planing machine and molding machine:
a Date of Violation:
12/29/83
Location: Shop A Northwest
Corner
Equipment: Apex Planing
Machine, Serial # 36321
Condition: (Fill in When
Necessary).
b Date of Violation: 12/29/83
Location: Shop B, South Wall
Equipment: Baylor Molding
Machine, Serial # 63546
Condition: (Fill in When
Necessary).
(b)
SAVE for 1910.22(a)(2). There are
two options for this SAVE; however, only one of these
options is illustrated.
1 As It Appears in the SAVEs
database.
OPTION 1
29 CFR 1910.22(a)(2): Floors of
workrooms were not maintained, as far as possible, in
a dry condition:
2 What the CO/IH Must
Specify. Enter appropriate variable information:
a
Date of Violation: 12/29/83
Location: Machine Shop, East
End
Condition: Water on Floor
Around Dumas Injection Machine.
3 Completed AVD as It
Appears on the Citation. 29 CFR 1910.22(a)(2):
Floors of workrooms were not maintained, as far as
possible, in a dry condition:
a
Date of Violation: 12/29/83
Location: Machine Shop, East End
Condition: Water on Floor
Around the Dumas Injection Machine.
(c)
SAVE for a Standard with a General
Requirement.
1 As It Appears in the SAVE
database.
OPTION 1
29 CFR 1910.132(a): Protective
equipment was not used when necessary whenever hazards
capable of causing injury and impairment were
encountered:
2 What the CO/IH Must
Specify.
o Identify type of protective
equipment needed: wire mesh gloves.
o Enter appropriate variable
information:
Date of Violation: 12/29/83
Location: Deboning Department,
Main Deboning Table
3 Completed AVD as It
Appears on the Citation. 29 CFR 1910.132(a):
Protective equipment was not used when necessary
whenever hazards capable of causing injury and
impairment were encountered:
a
Date of Violation:
12/29/83
Location: Deboning
Department, Main Deboning Table
Condition: Wire Mesh Gloves
Were Not Used to Protect Workers During Repeated
Boning Operations.
(d)
SAVE for a Standard Incorporated by
Reference.
1 As it Appears in the SAVEs
database.
29 CFR 1910.101(b), Section 3.3.8,
Compressed Gas Association Pamphlet P-1-1965, as
adopted by 29 CFR 1910.101(b): Compressed gas
cylinder(s) were stored near elevators, gangways or in
locations where heavy moving objects could strike or
fall on them.
NOTE: Applies to cylinders
only, not to welding, cutting and brazing as
given in 1910.252.
2 What the CO/IH Must
Specify.
o Insert the appropriate
section number of the adopted standard, and the
name of the adopted standard: 1910.101(b), Section
3.3.8, Compressed Gas Association Pamphlet
P-1-1965.
o Enter appropriate variable
information:
Date of Violation: 12/29/83
Location: Main Cylinder Filling
Station, East End
Condition: Adjacent to
Rampway Used by Powered Industrial Trucks.
3 Completed AVD as it
Appears on the Citation. 29 CFR 1910.101(b),
Section 3.3.8, Compressed Gas Association Pamphlet
P-1-1965, as adopted by 29 CFR 1910.101(b): Compressed
gas cylinders were stored near elevators, gangways or
in locations where heavy moving objects could strike
or fall on them:
a
Date of Violation:
12/29/83
Location: Main Cylinder Filling
Station, East End
Condition: Adjacent to
Rampway Used by Powered Industrial Trucks and
Subject to Being Struck by Them.
(e)
SAVE for Citation of the General Duty
Clause.
1 As it Appears in the SAVEs
database.
Section 5-104(a) of the Act: The
employer did not furnish employment and a place of
employment which were free from recognized hazards
that were causing or likely to cause death or serious
physical harm to employees:
Identify the hazards. Describe the
conditions or practices which are creating the hazard.
Identify the specific operation involved and location.
Provide one feasible abatement method which is
acceptable to correct the hazard. The statement should
read:
"Among other methods, one
feasible and acceptable abatement method to
correct this hazard..."
NOTE: See Chapter IV for
determining propriety of a Section 5-104(a)
citation.
Section 5-104(a) Violation.
Employees are using compressed air in the machine shop
to clean milled parts. The compressed air is reduced
to less than 30 psi at each nozzle. The air compressor
is located in the northwest corner of the shop and is
operating at 120 psi. The piping for the compressed
air is schedule 40, 1/2" diameter, polyvinyl
chloride pipe - PVC. Employees working in the shop are
exposed to the hazard of being struck by pieces of the
pipe hurled throughout the shop in the event the pipe
fails, as it was not designed to withstand such
pressure. MOSH does not have a standard that applies
to the hazard. This hazard can be cited as a violation
of Section 5-104(a) of the Act if it can be
established that:
o There is not an applicable
MOSH standard.
o Employees are exposed to a
hazard that is serious by definition.
o The hazard is recognized by
the industry.
o There are feasible abatement
methods to correct the hazard.
2 What the CO/IH Must
Specify.
a Identify the recognized
hazard: Death or serious injuries resulting from
rupture of the PVC pipe.
b Give a method of
correcting the hazard that is feasible and useful:
The use of metal pipe to transport the compressed
air.
c Enter the appropriate
variable information:
Date of Violation: 04/24/00
Location: Machine Shop
Equipment: PVC Pipe (in this
example it is not applicable)
3 Completed AVD as it
Appears on the Citation.
Section 5-104(a) of the Act: The
employer did not furnish employment and a place of
employment which were free from recognized hazards
that were causing or likely to cause death or serious
physical harm to employees:
Date of Violation: 04/24/00
Location: Machine Shop
Condition: Schedule 40, 1/2"
polyvinyl chloride pipe (PVC) was used to distribute
compressed air at 120 psi exposing employees to
being struck by pieces of pipe in the event of an
explosive rupture of the pipe:
Among other methods, one feasible
and acceptable abatement method to correct this hazard
would be discontinue use of PVC pipe to transport
compressed air and replace PVC pipe with metal piping
designed and manufactured to withstand such pressure.
NOTE: Other elements may be
added or revisions made to elements listed in the
example as conditions dictate.
Continued
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